Bhagwat Vitthal Bharhate vs State Of Maha
2016 Latest Caselaw 5561 Bom

                                                                   419.03crvn
                                     (1)




                                                                   
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD
                                                  




                                           
            CRIMINAL REVISION APPLICATION NO.419 OF 2003

     Bhagwat Vitthal Barhate,
     Age: 34 years, Occ: Driver,




                                          
     R/o. Nandurghat, Tq. Kej,
     District Beed.                                 ..APPLICANT

              VERSUS




                                   
     The State of Maharashtra                       ..RESPONDENT  
                             
     Mr Ruchir Wani, Advocate h/f Mr A.S. Bajaj, 
                            
     Advocate for applicant;
     Mr C.V. Dharurkar, A.P.P. for respondent


                            CORAM :  N.W. SAMBRE, J.

DATE : 26th SEPTEMBER, 2016

ORAL JUDGMENT :

This revision is by original accused, who

was convicted by learned Judicial Magistrate, First

Class, Pathardi in Summary Criminal Case No. 132 of

2000 for an offence punishable under Sections 279,

337, 427 of the Indian Penal Code and under Section

184 of the Motor Vehicles Act, which was partly

modified in Criminal Appeal No. 28 of 2003 by

setting aside the conviction for an offence

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punishable under Section 427 of the Indian Penal

Code and under Section 184 of the Motor Vehicles

Act. As such, present criminal revision

application.

2. Heard learned Counsel for the applicant.

Learned Counsel for the applicant submits that the

spot panchnama ought not to have been taken to be

proved once it is brought to the notice of the

Court that panch witnesses were not examined.

According to him, the Court has proceeded contrary

to the provisions of Sections 67 and 69 of the

Evidence Act. He would then submit that the

evidence of PW-4 Padmabai, who turned hostile was

incorrectly discarded though she has in categorical

terms stated that PW-1 was driving jeep in rash and

negligent manner, which was the cause of accident

in the present case. He would then take me through

the scenario of the accident so as to substantiate

his case that the applicant is wrongly convicted

for the offence in question.

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3. While opposing the claim, learned A.P.P.

submits that learned Sessions Judge has rightly

modified the punishment and the fact remains that

the conviction of the applicant for an offence

punishable under Section 279, 337 of the Indian

Penal Code is based on oral evidence. According to

him, there is no scope of interference in

revisional jurisdiction and revision, as such, is

liable to be dismissed.

4. The facts as are necessary for deciding

the revision are as under :-

PW-1 Avinash @ Pravin was driving the jeep

bearing registration No. MH-16-E-1892 from Tisgaon

to Tribhuwanwadi on 28th February, 2000, which was

from east to west direction. It is claimed that on

the south side of the road, milk tanker bearing

registration No. MH-12-R-9896 was suddenly brought

on road by the accused, as such, tanker gave dash

to the jeep in question from cleaner side i.e.

other side of driver causing accident in question.

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5. PW-5 Investigating Officer, who has drawn

spot panchnama during the investigation, which is

at Exhibit-37, was duly proved the same. From the

spot panchnama, it appears that at the place of

accident, width of road was 18 feet and in

addition, there was 5 feet kaccha road on each

side. It is then brought on record that milk dairy

from which tanker was driven by the applicant was

located on southern side at distance of about 10

feet to 15 feet from main road. From southern side

tanker was brought on main road resulting into

accident. After the accident, it was noted that

tanker in question was found to be at the distance

of 24 feet from the spot of accident facing towards

eastern side.

6. PW-1 Pravin has stated that on the date of

incident, he was driving the jeep and it is the

tanker in question, who has caused the accident,

which has given dash to his vehicle. PW-2 Shrawan

and PW-3 Leelabai supported the case of the

prosecution, who has occupied front seat of the

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jeep and were sitting next to PW-1 who was driving

same. They have in categorical terms stated that

tanker was driven in rah and negligent manner,

which suddenly came on road resulting into

accident. PW-4 Padmabai has not supported her

statement recorded under Section 161 of the Code of

Criminal Procedure and was turned hostile.

According to her, it is the jeep driver who has

caused the accident in question. PW-5 the

Investigating Officer has duly proved spot

panchnama. The injury certificate is regarding

injury suffered by PW-1 and 2 was very much brought

on record. Learned Magistrate, pursuant to the

analysis of testimony, has inferred that the

offence as has been charged was duly proved against

the accused and sentenced him to suffer simple

imprisonment for one month and to pay fine of

Rs.500/-, in default to suffer simple imprisonment

for 15 days for offence punishable under Section

279 of the Indian Penal Code, to suffer simple

imprisonment for one month and to pay fine of

Rs.500/-, in default to suffer simple imprisonment

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for 15 days for offence punishable under Section

337 of the Indian Penal Code and also sentenced him

to suffer simple imprisonment till rising of the

Court and to pay fine of Rs.500/-, in default to

suffer simple imprisonment for seven days for the

offence punishable under Section 427 of the Indian

Penal Code and sentenced to suffer simple

imprisonment for one month for the offence

punishable under Sections 184 of the Motor Vehicles

Act.

7. The appellate Court noted that the offence

under Section 184 of the Motor Vehicles Act and

under Section 427 of the Indian Penal Code was not

proved. While giving such observations, learned

appellate Court noted that it is not brought on

record by the prosecution that the vehicle was

driven dangerously. The appellate Court confirmed

the conviction under Section 279 and 337 of the

Indian Penal Code.

8. Perusal of both the judgments in the light

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of submissions made reflect that the conviction of

the applicant-accused as is ordered by learned

Sessions Judge needs to be confirmed, particularly

in the light of oral evidence of victims of the

accused i.e. PW-1, 2 and 3. The spot panchnama at

Exhibit-37 has been rightly proved by the PW-5

Investigating Officer. If the topography of the

incident in question is analyzed based on Exhibit-

37, learned Magistrate and learned appellate Court

have rightly observed that the applicant is

responsible for the accident in question.

9. The contention of the applicant that the

spot panchnama was not duly proved, in the light of

evidence of P.W.5 - Investigating Officer is liable

to be rejected.

10. No case for interference in the revisional

jurisdiction is made out. As such revision fails

and stands rejected.

(N.W. SAMBRE, J.)

Tupe